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F E Smith, Advocate

Category: Family Law

Satisfied Customers: 8563

Experience: I have been practising for 30 years.

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Council house purchased by parents and brother. Father died,

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Council house purchased by parents and brother. Father died, Mother taken to solicitor to have her husbands name removed from deeds.Mother then unknowingly signed property over to brother.Mother was unaware of this until 8 years later.Can anything be done?

Mother had full mental capacity then and now but my father had only been dead 2 weeks.My brother took her to the solicitors.I don't know the answer to that question.My brother won't show me a copy of the deeds. I don't know of any correspondence.My mother is 91 and feels reluctant to 'stir things up' but I have Lasting POA and feel I have an obligation to do what I can to clarify the situation.The property has been transferred to my brother.My mother was only made aware of this last year after a family argument. My mother remarked that she owned 2/3 of the house and my sister in law told her she didn't own any part of the house.I asked him to reimburse my mother with 2/3 of the value of the house and he refused.Hope this helps

If your brother won’t let you have any details of this, you can make an application to court for a Pre-action Disclosure order to make your brother give you details of the transaction. The solicitor may not have the file after more than 6 years but it is worthwhile asking. That request must come from your mother. If the solicitor refuses to release the file because he says that he was acting for your brother it would be most strange if he was transferring the property from your mother to your brother because then, he would be acting for your mother not your brother. So ask the solicitor for the file. You don’t need to say why. If he refuses friendly reason you can make a formal complaint to the Legal Ombudsman and the Solicitors Regulation Authority and if you wish, you can apply to court for a court order called a Norwich Pharmacal order (after a court case of the same name) for a third party (the solicitor) to release the file to you.

If the solicitor says that he has destroyed the file because he only needs to keep it for 6 years, there is nothing that anyone can do to recover a destroyed file.

You would then be faced are bringing litigation against your brother to have the transfer overturned on the basis that your mother although a full mental capacity at the time of the transfer, was stricken with grief and hence, did not know what she was doing and/or was misled by your brother. The very fact that your brother refuses to let you have any details of this is remarkably suspicious.

If you don’t have experience of dealing with this you might want to get the solicitor to write to your brother threatening all of the above.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid. We can still exchange emails.

I have just been made aware that my brother has re-mortgaged the house and I know which bank he used. Would I be able to contact the bank and explain my concerns?My mother has just moved into residential care and I am concerned that Social Services will believe she signed the house over to my brother to get out of paying care fees.I have already contacted the Land Registry and my mother owns no part of the house. The transfer took place 2 weeks after my father died and just days before the funeral.Unfortunatley my mother has very little money and I am trying to find a cost effective way of finding out the facts and what I can do about the situation.Do I, as having Lasting POA have an obligation to sort this matter?

There is nothing to stop you contacting the bank but they may think that it’s just sour grapes. By all means tell your brother what you are going to do if he doesn’t start to be more open with things.

With regard to social services, there is no set period for a transferred to have been done after which the house is safe from the local authority clutches in respect of payment for care. That would be your brother’s problem and if he has remortgaged, and the local authority want the lion share of the house, it could be problematical for him.

With the Lasting Power of Attorney you have the ability to resolve the issue but you are not under a duty to do so. Indeed, at present, if your mother does not want to do anything about this, you have to respect her wishes.

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